RAMAKRISHNA MENON Vs. SANKARAN NAIR

JUDGEMENT

(1.) The question in these two second appeals is attachability of undivided share of a junior member in a Nayar tarwad governed by the Cochin Nayar Act, XXIX of 1113. S.62 of the Act definitely lays down that until partition no member of the tarwad shall be deemed to have a share which is liable to be proceeded against in execution. Normally the undivided interest of a member entitled to claim partition of his joint family (or tarwad) property is attachable and saleable in execution as has been held in Sidheswar Mukherjee v. Bhubneshwar Prasad Narain Singh ( AIR 1953 SC 487 ). But where the members of a community had no right of partition of their joint family (or tarwad) property and such a right came to be conceded by legislation, it is open to the Legislature to impose conditions on the right or to restrict its consequences. In the circumstances, the provision in S.62 that the right to partition conferred by the Act shall not enlarge the rights of the members in the tarwad property before actual exercise of the right - that in may view is the effect of the provision that until partition no member shall be deemed to have a share liable to be proceeded against in execution - has to be given effect. The orders of the Court below disallowing attachments in the instant cases are therefore right. The second appeals fail and are hereby dismissed, but, in the circumstances, without order as to costs.